Complainant

Respondent

Anonymised Parties

A Bricklayer

A Builder

Representatives

none 

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033943-001

22/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033943-002

30/01/2020

The Complainant commenced employment as a bricklayer with the Respondent on 1 March 2017.   He was dismissed from this employment on 19 December 2019. The Complainant was paid €680 per week and he worked 39 hours per week. A Complaint Form was received by the WRC on 22 January 2020. The fact of dismissal was not in dispute.

In direct evidence the Respondent stated that he had taken on three workers in the spring of 2017 to work on a specific project. The Respondent was working as a sub-contractor and at the end of this first contract, which had gone well, he was asked by the contractor to start a second project. However, there were difficulties in getting the correct payment from the contractor for the work being undertaken. The Respondent had arguments with the contractor about the quality of workmanship. Because of these disagreements 50% of the retention money was withheld by the contractor meaning the Respondent made a loss on this project.

Notwithstanding the above, the Respondent stated that he was asked to undertake a third project with the same contractor. Although somewhat apprehensive about taking on this project, the Respondent was reassured by a quantity surveyor (QS) who had just joined the contracting company that things would be good. Unfortunately, from the Respondent’s perspective, this QS left the contracting company and a new QS took over with whom the Respondent experienced many problems. The same issues that had caused difficulties in the second project arose again. Despite holding back payments to the Complainant the contractor still wanted the same number of men on the job. This Complainant stated that this project became a “nightmare”; it was taking longer than expected, the team was not functioning the way it should have been, and because of delays the costs of bricklaying, kept going up while at the same time he was no being paid adequately by the contractor.

The Respondent stated that on 12 or 13 December 2019, he told his bricklayers that he did not think he would be continuing with the project after Christmas and that he would “have to put [them] all on protective leave”. Around this time the Complainant contacted the Respondent by text and stated that he owed him money. The Respondent spoke with the Complainant and told him that in his view he had been more than fair to him in that he had paid him three weeks’ sick money. The Complainant explained that he had paid the Complainant a total of 13 days’ pay in November 2019, when the Complainant was out sick. The Respondent believes that in the circumstances he had been reasonable.

In response to questions, the Respondent stated that there were no disciplinary issues with the Complainant at the time of the dismissal. He also stated that he did give two weeks’ notice that “there was a problem”.

The Complainant stated that things had stared well when he commenced with the Respondent, however, on the third project he worked on with the Respondent he could see there were many problems between the Respondent and the contracting company, there was great pressure on everyone. Things came to a head around the week before Christmas when the Complainant received a phone call from the Respondent in which the Respondent told the Complainant that if a particular job came through, they could get back working in the new year. The Complainant stated that at this time he was out sick with a back injury and he had been paid three days’ holiday pay during this absence.

The Complainant stated that he contacted the Respondent and told him that he was short a few days’ pay. An argument ensued which upset the Complainant. The Complainant subsequently received some pay (few days) in January 2020. The Complainant stated that he was due two weeks’ notice payment, compensation for being out of work for a week and a half, and three days’ holiday pay he says he is owed.

At the hearing the Complainant presented an SMS message that indicates he was only told about the termination of his employment on 19 December 2019.

The Complainant stated that he had commenced work with a new employer on similar pay to his previous employment in January 2020 and therefore he was only without work for a week and a half.

In essence there is no disagreement between the parties in this case other than with the regard to the issuing of notice. It would seem that the bricklaying work dried up and the Respondent decided to dismiss the Complainant. In the normal course of events this situation would be more akin to a redundancy situation but in this case the Respondent has accepted that he did dismiss the Complainant. An employer is bound to show that not only had he substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal.Although there might have been a substantive reason for letting the Complainant go (i.e. the work available was diminishing) there certainly was no procedure followed, no criteria referred to and this therefore must be classified as an unfair dismissal.

There is a conflict of interest regarding the issuing of notice. The SMS message presented by the Complainant does indicate that notice was only given on the day the employment was terminated.

In deciding on the award to be made in this case I shall take into account the fact that the Complainant took up new employment within a week and a half of being dismissed and that he was paid some money in January. I am also mindful of the lack of notice given to the Complainant by the Respondent.

The Complaint is well founded, and I order the Respondent to pay the Complainant €1,700.00.

The Complainant submitted that he is owed €450 for three days’ holiday pay he never received.

The Respondent submitted that the Complainant was paid all holiday monies owed to him.

The Respondent did not provide any documentary evidence to support his position that all holiday money owed to the Complainant had been paid to him. In the circumstances I find in the Complainant’s favour.

The Complaint is well founded, and I order the Respondent to pay the Complainant €408.00.

Procedures, dismissal, holiday pay